The High Court has set an important precedent for survivors of child sexual abuse, with a decision handed down in relation to a Lismore priest.
The court yesterday ruled that a permanent stay of proceedings would not be granted in the case of GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore.
In 1968, then 14-year-old GLJ was allegedly subjected to a violent sexual assault by Father Clarence Anderson, who died in 1996.
GLJ began a claim for damages for personal injury against the diocese in 2020. The diocese responded with a notice seeking a permanent stay of proceedings, which was refused by the Supreme Court.
That decision was overturned by the Court of Appeal, which considered that despite evidence of the priest’s alleged offending against young boys, the exceptional circumstances of the case being a once-off assault against a young female, meant that the stay should be allowed.
GLJ then filed an application for special leave to the High Court, stating:
- the Court of Appeal made an error of principle in the significance it gave to Anderson’s death. GLJ argued that the diocese is not withheld from defending itself against her allegation, even without instructions obtained directly from the deceased;
- the Court of Appeal’s approach subverted the policy of legislative amendments in response to the Royal Commission into Institutional Responses to Child Sexual Abuse; and
- the Court of Appeal’s decision involved factual error. If Father Anderson’s putative instructions were relevant, the evidence allowed an inference to be drawn that he, if he were alive, would have denied the abuse.
The diocese argued it had no chance of receiving a fair trial in circumstances where it had no access to Father Anderson or other material witnesses, essentially on the issue of whether the sexual assault took place. It also argued that at the time of the priest’s death, neither the priest nor the diocese was on notice of GLJ’s allegations of sexual assault.
Justices Kiefel, Gageler and Jagot stated the granting of a permanent stay “must be one of last resort on the basis that no other option is available”.
“In the present case, the abolition of the limitation period that would have applied to and precluded the appellant’s proceedings before the enactment of the Limitation Amendment (Child Abuse) Act 2016 (NSW) has created a new legal context within which the alleged abuse of process must be evaluated,” they said.
“In this new legal context, the diocese’s contention that any trial of the proceedings would be necessarily unfair must be rejected. As the diocese acknowledged that its case for a permanent stay for abuse of process was based only on necessary unfairness of a trial and not undue oppression or unfairness otherwise, no permanent stay is justified. The proceedings must go to trial.”
Justices Steward and Gleeson dissented, stating a fair trial was not possible and so a permanent stay should be granted.
The High Court also ordered the diocese pay GLJ’s court costs.
Read the case note here.
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